Edward Snowden, leaker extraordinaire of classified NSA documents, is said to be seeking an extension of his political asylum in Russia, where he has resided, beyond the reach of US jurisdiction and under legal protection granted by Vladimir Putin personally, for a little over one year. Snowden seems to be settling in for the long haul as a fugitive expatriate.
He is making a big mistake. At some point Snowden must return to the US and face the criminal charges pending against him. By postponing this reckoning, he adds to skepticism about his motives. More important, he diminishes his legitimacy as a whistleblower who broke the law to expose government overreaching, change official policy, and vindicate principles of government transparency and individual privacy.
Snowden has portrayed his accessing, copying and distribution (to selected journalists) of NSA records as acts of conscience–and so they may have been. Civil disobedience is a time-honored form of protest, particularly in a democracy. But civil disobedience is not painless; it is not a get-out-of-jail free card.
Civil disobedience assumes–in fact, requires–submission to legal processes: to trial and possible punishment. This, the painful part of civil disobedience, is what distinguishes morally-just protest, on one hand, from mere law-breaking, on the other. Think of Martin Luther King, Jr.
Think also of James Risen, a New York Times reporter who faces sanctions, including jail, for his civil disobedience in defying a court order. Risen has been waging a legal battle to protect his confidential sources for a book revealing classified information on US intelligence operations in Iran. Having appealed all the way to the Supreme Court, to no avail, Risen has run out of legal options (although the Justice Department has hinted that it might back off of enforcing its subpoena demanding Risen’s testimony about confidential sources).
Snowden’s situation and Risen’s are very similar. Both Snowden and Risen are in trouble for disclosing classified information. Snowden has been indicted, while Risen is subject to a court order (that remains intact after multiple appeals). Snowden has fled the country, escaping (at least for now) any legal consequences for his actions. The morally equivalent choice for Risen would be to renege on his promise of confidentiality and to provide sworn testimony to government prosecutors.
The likelihood of Risen, a principled and professional journalist, betraying his source to avoid jail–is zero. For Snowden, too, the moral choice is clear. To legitimize his violations of federal law as acts of conscience, he needs to face the consequences, not run away from them.
If Snowden, instead of going public with his information, had decided to leak his NSA documents on a confidential basis to journalists at The Guardian and the Washington Post, those journalists would today be in the same boat as the New York Times’ Risen–under subpoena and facing prison or other serious sanctions for refusing to comply. Why, then, should the expectations be so different for Snowden?
Snowden no doubt fears going to prison. Who wouldn’t? But Snowden, if he returned to the US, would receive a trial that is not only fair, but a model of due process. Media interest would be off the charts. That would maximize transparency in all court proceedings–which, in turn, would pressure prosecutors to exercise restraint.
Snowden would have the very best criminal defense lawyers in the country (regardless of his ability to pay them). And those lawyers would make the most of the government’s dilemma: having to prove harm to national security, but without revealing sensitive information that could cause still more harm to national security.
Snowden’s lawyers will also insist that he cease all public comments. No more press conferences via Skype, no Twitter or email, no calls with reporters. Total silence, giving his lawyers control over his message and image. For Snowden, who clearly loves the sound of his own voice and delights in dealings with the media, such muzzling may be hard to abide. Still, it’s not a reason for staying on the lam.
Snowden’s unfinished business is in a US courtroom, not a Moscow suburb.
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Peter Scheer is executive director of FAC. The views expressed here do not necessarily reflect the opinions of FAC’s Board of Directors.
5 Comments
This is an unrealistic position, as Daniel Ellsberg has explained. People seem to forget that Daniel Ellsberg’s prosecution ended in a mistrial because of the Nixon staff’s unethical approach to the judge to become the head of the FBI. Nixon was facing his own crisis. Otherwise, Daniel Ellsberg might well have been convicted of criminal acts, as he has repeatedly and recently stated. Snowden does not need to face criminal prosecution and, no doubt, a long imprisonment to prove his legitimacy. The articles by journalists at The Guardian and the Washington Post prove the legitimacy of Snowden’s actions.
This is nonsense. resting on the assumption that a fair trail is possible here. It’s like saying in the old days that a Soviet defector had a duty to go home and face the charges in a Leningrad court.
In particular, Snowden will not be allowed to have much of the government’s evidence against him, on national security grounds. He will not be allowed any kind of whistleblower defense.
In the old Soviet Union, you could get a fair trial on a traffic ticket, and if your foreman at work misbehaved you had a good chance of prevailing against him. In the same way, a defendant in many cases in the United States can get a fir trial in cases where the emerging police state has no stake.
But if your case is one in which the prosecutor can say “national security,” forget about a free trial. Easy for you to talk, but in Snowden’s position, reality might concentrate your mind.
Although I agree with the general proposition that a person engaging in civil disobedience necessarily must be willing to accept the possibility of punishment, I continue to swing back and forth on the question of whether Snowden should return now to the U.S. to stand trial. I can see compelling arguments on both sides. However, it is unfair to call for his return by holding him up to the actions of NYT’s reporter James Risen. You note that “Snowden’s situation and Risen’s are very similar.” This is true only in the broadest sense that both revealed classified information. No one has accused Risen of being a traitor to his country. No one has threatened Risen with bodily harm or death. Risen faces a charge of civil contempt, not serious criminal prosecution. Risen faces the possibility of incarceration, but likely only for a relatively brief period of time and then only for as long as a judge believes incarceration will force him to comply with a court order to reveal his sources(something you say he will never do). Finally, Risen enjoys the status of being a reputable reporter for one of the greatest news organizations in the world, which has stood behind him. No, the situations are not comparable, but the issue you raise—personal accountability—is the same for both men. Ultimately, Snowden must face the consequences of his actions and he must face them here at home. The only remaining question in my mind is when.
There may be value to letting a bit more time pass before Snowden’s day of reckoning. We do not yet know the full scope of the government abuses revealed by Snowden as they are being serialized out like a bad soap opera. We do not yet know what actual damage to our national security Snowden has wrought, nor do we yet know the positive reforms that may result from his revelations. Passions will wane as time passes,our understanding of the big picture will grow more complete and the likelihood of a full and fair trial will increase with the passage of time.
So, Mr. Snowden, you should heed Mr. Scheer’s advice, but perhaps in a year or two.
This opinion piece is terribly reasoned. Snowden has done his job of exposing the NSA and the FISA court. Scheer argues that Snowden needs to return to convince people about his motives. There are a lot of people who will always hold to Snowden being a spy no matter what he does, and convincing those people is far less important than the revelations continuing to be published by the Guardian. Sitting in jail for 30 years isn’t going to be the difference that allows our society to reign in our wayward intelligence agencies (if it can do so at all).
Scheer says it is the willingness to submit to punishment that distinguishes morally-justified law breaking from “mere lawbreaking.” In otherwords, since Snowden is apparently not willing to submit to the US justice system, it would have been morally preferable for him to never have disclosed the unconstitutional surveillance dragnet in the first place. As a citizen concerned about the surveillance state, I find this reasoning ridiculous. Snowden may not be engaging in “civil disobedience,” but it sure as hell is not “mere lawbreaking.” Scheer is implicitly dismissing the hardships of permanent exile, a government-orchestrated smear campaign, and the very real threat to Snowden’s life.
Also, there’s this NAIVE BULLSHIT: “But Snowden, if he returned to the US, would receive a trial that is not only fair, but a model of due process.” Is this some kind of joke? Snowden would be allowed no evidence, and the media attention would come to naught given the broad powers given to the government in deciding what can remain classified on the grounds of national security. Even if he had the best criminal lawyers, what’s the point? There’s no law or defense to protect whistleblowers in this case. The government isn’t required to prove the harm it claims has been done. There is every reason to believe Snowden would be charged with Espionage and Aiding the Enemy, despite the controversy in using such charges against whistleblowers (which is outside the historical usage of those serious charges).
Finally, at the end, it looks like Scheer has some kind of axe to grind specifically with Snowden. Maybe this is because Snowden isn’t doing it in the tradition of civil disobedience. He reveals his prejudice with this line “For Snowden, who clearly loves the sound of his own voice and delights in dealings with the media, such muzzling may be hard to abide.” In 1 year, Snowden has done an interview with Brian Williams, a TED talk, and a reddit AMA. He’s hardly the self-obsessed attention-seeker Scheer is trying to portray him as. Regardless, For someone at the first amendment coalition, Scheer seems really interested in silencing this whistleblower.
I have to say I think your response is the most on-target. Does anyone reasonably think the government would not have assassinated Snowden, even in China’s Hong Kong, had it found the opportunity? Even if that’s a reasonably possibility, Snowden’s doubts for his own safety are at least as reasonable.
Face it, Snowden is not a 21st Century Thoreau, opposing the war with Mexico. The espionage state is global. Having discharged a great moral responsibiity, he owes NOTHING to the miserable government he exposed. He should come back as a hero (with an enforceable deal), or not at all.
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